(dissenting). I dissent and vote to affirm the order and judgment. No triable issue is apparent. The value of the old truck to be taken in part payment for the new one was fixed at the sum of $227.50 in the written contract negotiated by the defendant’s salesman. That contract provided expressly for reappraisal of the old truck in the event that same was not delivered to the defendant before the delivery to plaintiff of the new one. As matter of law, upon the undisputed facts, there was no such delivery, actual or constructive, of the old truck to the defendant before the attempted delivery of the new one to the plaintiff, at which time defendant, pursuant to the right conferred upon it, reappraised the old truck at the sum of $125 only, in an appraisal not shown to have been arbitrary; and, in effect, offered to close the contract as written, modified only in accordance with such reappraisal. The plaintiff refused to close on those terms, insisting upon closing the contract as originally written, regardless of the reappraisal, and thereby breached the contract and is precluded from recovery.
Adel, J., concurs with Taylor, J.
Order, in so far as it denies plaintiff’s motion for summary judgment, affirmed, and the order, in so far as it grants defendant’s cross-motion for summary judgment dismissing the complaint, and the judgment entered thereon, are reversed on the law and the facts, with ten dollars costs and disbursements, and defendant’s cross-motion for summary judgment denied, without costs.